The MSPB: Administrative Justice for Federal and Postal Workers Denied Disability Retirement Benefits

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Now, the fox is known throughout as a wily and clever animal, and when he was first hired by the farmer to guard the chickens, there were more than a dozen. After a week, the numbers were bleak: half a dozen chickens left, and no eggs. “The enemy is indeed clever, but fear not farmer, as you would have lost all but for my relentless patrolling of the premises”, the fox said in his silky, soothing voice. After two weeks, there was but one chicken left, with no eggs to gather. The farmer, puzzled, looked at the fox, whose coat was covered with feathers mixed with bits of eggshells and yoke. “What happened?” demanded the farmer, alarmed by his diminishing fortunes. “Not to worry,” said the fox, “for we have now laid the perfect trap – we now know that the enemy likes chickens and eggs, and we have a juicy one, indeed, as bait to catch the culprit!” That night, the chicken disappeared, and the fox fled, and the farmer was left with nothing but a note: “Dear Mr. Farmer, you need not worry. The culprit will not return.”

                                                            — From Fables Long Forgotten
The important question for the Federal and Postal Employee who files for Federal Disability Retirement benefits under FERS or CSRS is: What happens if the Office of Personnel Management denies my application? Is that the end of my chances? Is there an independent forum to review the actions of the Office of Personnel Management?
Fortunately, the answer to the last question (which therefore answers all 3 questions) is: Yes – the Merit Systems Protection Board (MSPB), and beyond, a Petition for Full Review to the MSPB, and beyond that, to the United States Court of Appeals for the Federal Circuit.
A benefit of employment in the Federal Sector is worth something only to the extent that it is accessible, and accessibility of a benefit can only be determined if there is a fair and objective criteria to determine eligibility. In order to provide a fair and equitable process in determining eligibility for a benefit, placement of a hierarchy of administrative appellate procedures is necessary. Further, each step in the appellate process should be systemically constructed to insure an objective and fair review, with the force of law behind the process. This is precisely what the Merit Systems Protection Board ensures.
When a Federal or Postal Employee under FERS or CSRS files an application for Disability Retirement benefits, it first goes through the employee’s Agency (unless one has been separated from Federal Service for 31 days or more, in which case the application is submitted directly to the Office of Personnel Management), before it is routed to OPM. Once there, it is reviewed by an OPM “Disability Retirement Specialist”, who can approve or deny it. If denied, the employee has a right to file a “Request for Reconsideration” within thirty (30) days of the denial. Two important points must be kept in mind as to this stage in the administrative process: 
First, the Denial Letter from the Office of Personnel Management will state that your request for reconsideration “must be received by OPM within 30 calendar days” of the date of the denial letter (emphasis added). Do not attempt to challenge that assertion. While it may seem “unfair” that the denial letter is dated two weeks prior to your actually receiving the letter, or (as is often the case) the postmarked date shows that it was sent out ten days after the date of the letter (as if the letter sat on OPM’s desk for a week), nevertheless, comply with the unreasonable statement. If you are late in submitting such a request because of OPM’s lack of diligence, can you win an argument that it was OPM’s fault? Maybe – but don’t tempt the gods of fate; submit the Request for Reconsideration in accordance with OPM’s instructions, and don’t fret about “fairness”. 
Second, you must file a Request for Reconsideration in order to proceed further down the line of the process, and secure your right to any further appeals. This is important – you cannot skip this step and think that you can proceed to the next step of the administrative appeals process. Compliance with this step is a legal prerequisite in order to file a later appeal to the MSPB.
Next, if the Office of Personnel Management denies the disability retirement application at the Reconsideration Stage, then the Federal or Postal employee has the right to file an appeal to the Third Stage of the Process, the Merit Systems Protection Board. For this stage of the process, two important points should be kept in mind:
(A) OPM’s denial will inform the applicant that you “have the right to appeal this decision to the Merit Systems Protection Board,” and further, that an “appeal must be filed within 30 calendar days after the date of this decision, or 30 days after receipt of this decision, whichever is later.” (Emphasis added) Now, everyone knows that “life happens” and in the busy world in which we live, 30 days can pass by in a flash. My advice is always as follows: File the appeal within 30 days of the date of the denial letter. Don’t leave any room for doubt; don’t fiddle around; don’t let the fox (in this case, OPM – no offense intended) get near the hen house. 
(B) In the Denial Letter from the Office of Personnel Management, the “Legal Administrative Specialist” will provide you with the address of the Merit Systems Protection Board office that you should file with. Double-check the address. Call information and get the number to the Merit Systems Protection Board, and verify the address. I have found, on numerous occasions, the wrong MSPB office listed (which is actually not a grievous mistake, because the MSPB office that the appeal is filed with will simply forward the appeal to the right office, and you will have met the deadline even if it is filed with the wrong office), or worse, the wrong street address or zip code (a potentially more grievous error, because the appeal may never get there in time).
Finally, unless there is an oversight, the Office of Personnel Management will include MSPB Form 185 along with the denial letter. That form is a fairly self-explanatory form to fill out. However, the mere fact that the form to appeal the case appears to be relatively simple, does not mean that an individual can – or should – undertake such an appeal without hiring an attorney who is versed in the process. An aside: As an attorney who specializes in representing Federal and Postal employees to obtain Federal Disability Retirement benefits for FERS & CSRS employees, I believe that – while each individual must make his or her decision based upon multiple factors, such as financial considerations, confidence in the strength of the case, ability to formulate a coherent strategy to win a case, etc. – an attorney can be helpful from the very beginning of the Federal Disability Retirement process; nevertheless, if the employee has tried to file on his or her own and has been denied not just once, but twice; then, in my view, it would be unwise to take it to the next step of the process without the assistance of an Attorney. 
The Merit Systems Protection Board is an Administrative Judicial forum which essentially acts independently of the Agency which has denied the benefit applied for. The Office of Personnel Management, in this case, as the Agency which approves or denies the Federal Disability Retirement benefits under FERS or CSRS, now loses its “jurisdiction” over the disability retirement application. That jurisdiction to review and determine the eligibility of a Federal Disability Retirement applicant is taken over by an Administrative Judge (“AJ”) of the Merit Systems Protection Board.
Jurisdiction by the Merit Systems Protection Board is determined by statutory authority. 5 C.F.R. Section 1201.3 states that the “Board has jurisdiction over appeals from agency actions when the appeals are authorized by law, rule or regulation.” Such jurisdiction includes appeals from determinations by an Agency (such as the Office of Personnel Management) “affecting the rights or interests of an individual or of the United States under the Civil Service Retirement System or the Federal Employees’ Retirement System” (5 C.F.R. Section 1201.3(6) )
The importance of the role of the Merit Systems Protection Board consists in the very fact that it takes the power of determination out of the hands of the Office of Personnel Management, and places it in the hands of an independent forum, to make an independent determination outside of the scope of, and separately from the originating Agency. Thus, the systemic placement of independence is ensured, and the integrity of the appellate process is preserved, in multiple ways. Think about it this way: How would the system work if the Agency which employs the Federal or Postal employee were to be the same Agency which approves or denies an application for Disability Retirement? 
Take the following hypothetical: An Air Traffic Controller for the Federal Aviation Administration files for Federal Disability Retirement benefits under FERS, and under this theoretical scenario, the FAA itself makes the determination. How fair would that be? Nepotism, favoritism, politics and brown-nosing would be the standard of the day (I know – some would say that it goes on already, but this article is not meant to address those complaints), and there would be an utter lack of administrative integrity. 
Now, look at the present system: While the Agency has certain input in a Federal Disability Retirement application (i.e., Supervisor’s Statement, Agency Efforts for Reassignment & Accommodation, etc.), the actual determination of eligibility is made by another agency – the Office of Personnel Management. This “extra” step of providing for a separate Agency to determine a Federal Disability Retirement application provides a “one-step removed” process, ensuring an initial review of some objectivity. 
Further, the integrity of the reviewing process becomes further enhanced with the Merit Systems Protection Board (MSPB), which provides a “second-step removed” in providing for greater objectivity in the Federal Administrative process. It protects the integrity of the appellate process, by providing for an independent determination in the event that the original determining Agency (the Office of Personnel Management) denies the Federal Disability Retirement application submitted by a FERS or CSRS employee. 
The Merit Systems Protection Board ensures the integrity of the system as a whole and, from a professional standpoint as an Attorney who has dealt with many Administrative Judges before the Merit Systems Protection Board, I have found that the judges are independent-minded, have a passion for applying the laws governing Federal Disability Retirement, and to a person, are fair-minded and open-minded to the evidence presented.
A Final Note: It is important to put on an excellent case before an Administrative Judge of the Merit Systems Protection Board. Judges like proof, and the proof that is needed should be presented as a “coherent story”. Do not undertake to put on a Federal Disability Retirement case without preparing to present a case replete with medical testimony which fully supports the original disability retirement application. 
Further, remember that, just as the original disability retirement application should have been prepared for the “long haul” – meaning, for the entire administrative appeals process, including the MSPB – the case that a Federal or Postal employee puts on before an Administrative Judge of the MSPB should be prepared and presented for the potential steps beyond: beyond to the Petition for Full Review before the MSPB, and to the United States Court of Appeals for the Federal Circuit. In order to put on such a case which ensures your rights for further appeals, you must be versed in the laws governing Federal Disability Retirement under FERS & CSRS. But that is fodder for another article.

© 2020 Robert McGill. All rights reserved. This article may not be reproduced without express written consent from Robert McGill.


About the Author

Attorney Robert R. McGill specializes in Federal Disability Retirement cases helping Federal and Postal workers secure their OPM Disability Retirement benefits under both FERS and CSRS. For more information about his legal services, visit his Federal Disability Lawyer website.